Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/731

JUS NAT0RALE.] ROMAN LAW 707 in either that of property or that of obligation. The rise and progress of the military testament has already been explained. The testament of the common law was still ostensibly that per aes et libram ; but the practice of granting bonorum possessio secundum tabulas to the persons named as heirs in any testamentary instru- ment that bore outside the requisite number of seals led, from the time of Marcus Aurelius, to the frequent neglect of the time-honoured formalities of the familiae mancipatio and nuncupatio testamenti. It was a rescript of his, declaring that an heir-at-law should no longer be entitled to dispute the last wishes of a testator on the technical ground of non-compliance with the purely formal require- ments of the law, that practically introduced what Justinian calls the praetorian testament. One of the commonest provisions in the testaments of the period was the fideicommissum, a request by the testator to his heir to enter to the inheritance and thereafter denude wholly or partially in favour of a third party. It was introduced in the time of Augustus by (it is said) a testator who had married a peregrin wife, and desired thus indirectly to give to his peregrin children the succession which, as not being citizens, they could neither take ab intestate nor as his direct testamentary heirs. 1 The practice soon gained ground, and became thoroughly established once the emperor, shocked at the perfidy of a trustee who had failed to comply with the request of his testator, indicated his approval of the new institution by remitting the matter to the consuls of the day, with instructions to do in the circumstances what they thought just. So quickly did it establish itself in public favour, and so numerous did the questions become as to the construction and ful- filment of testamentary trusts, that before long it was found neces- sary to institute a court specially charged with their determination, that of the praetor fideicommissarius. The employment of a trust as a means of benefiting those who were under disqualifications as heirs or legatees, as, for example, persons who had no testamenti factio, women incapacitated by the Voconian law, unmarried and married but childless persons inca- pacitated by the Julian and Papia-Poppsean law, and so on, was in time prohibited by statute ; but that did not affect its general popu- larity. For, whether what was contemplated was a transfer of the universal hereditas or a part of it to the beneficiary (fideicommissum hereditatis), or only of some particular thing (fideicommissum rei singulars), a testamentary trust had various advantages over either a direct institution or a direct bequest (legatum). In theory the imposition upon the heir of a trust in favour of a beneficiary, whether it required him to denude of the whole or only a part of the inherit- ance, did not deprive him of his character of heir or relieve him of the responsibilities of the position ; and at common law therefore he was entitled to decline the succession, often to the great prejudice of the beneficiary. In order to avoid such a mischance, and at the same time to regulate their relations inter se and towards debtors and creditors of the testator's, it became the practice for the parties to enter into stipulatory arrangements about the matter ; but these were to some extent rendered superfluous by two senatusconsults, the Trebellian in the time of Nero and the Pegasian in that of Vespasian, which at once secured the beneficiary against the trustee's (i.e., the heir's) repudiation of the inheritance, protected the latter from all risk of loss where he was trustee and nothing more, and enabled the former to treat directly with debtors and creditors of the testator's and himself ingather the corporeal items of the inheritance. It was one of the advantages of a trust -bequest, whether universal or singular, that it might be conferred in a codicil, even though unconfirmed 'by any relative testament. The codicil (codicilli), also an invention of the time of Augustus, was a deed of a very simple nature. It was inappropriate either for disherison of sui or institu- tion of an heir ; but if confirmed by testament it might contain direct bequests, manumissions, nominations of tutors, and the like, and whether confirmed or unconfirmed might, as stated, be utilized as a vehicle for trust-gifts. Latterly it was held operative even in the absence of a testament, the trusts contained in it being regarded as burdens on the heir-at-law. The most important changes in the law of intestate succession during the period were those accomplished by the Tertullian and Orphitian senatusconsults, fruits of that respect for the precepts of natural law which in so many directions was modifying the doctrines of the jus civile. The first was passed in the reign of Hadrian, the second in the year 178, under Marcus Aurelius. Down to the time of the Tertullian senatusconsult a mother and her child by a mar- riage that was unaccompanied with manus stood related to each other only as cognates, being in law members of different families ; consequently their chance of succession to each other was remote, being postponed to that of their respective agnates to the sixth or seventh degree. The purpose of the senatusconsult was to prefer a mother to all agnates of her deceased child except father and brother 1 They could not even have a claim as cognates under the prsetorian rules ; for the prsetors followed the rule of the jus civile to this extent, that they did not grant konorum possessio to a person who had not testamenti factio with him whose succession was in question. and sister ; father and brother excluded her ; but with a sister of the deceased, and in the absence of father or brother, she shared equally. While there can be little doubt that it was natural con- siderations that dictated this amendment, yet its authors were too timid to justify it on the abstract principle of common humanity, lest thereby they should seem to impugn the wisdom of the jus civile, and so they confined its application to women who had the jus liber- arum, i.e., to women of free birth who were mothers of three children and freedwomen who were mothers of four, thus making it osten- sibly a reward of fertility. The Orphitian senatusconsult was the counterpart of the Tertullian. It gave children, whether legitimate or illegitimate, a right of succession to their mother in preference to all her agnates ; and subsequent constitutions extended the prin- ciple, admitting children to the inheritance not only of their mater- nal grandparents but also to that of their paternal grandmother. III. JUDICIAL PROCEDURE. The Formular System.* The ordinary procedure of the first three Formular centuries of the empire was still two-staged ; it commenced before system, the prsetor (injure) and was concluded before ajudex (injudicid). But the legis actiones had given place to praetorian formulae. Under the older system parties, and particularly the plaintiff, had them- selves to formulate in statutory or traditional words of style the matter in controversy between them ; and as they formulated, so did it go for trial to centumviral court or judex or arbiters, with the not infrequent result that it was then all too late discovered that the real point in the case had been missed. Under the formu- lar system parties were free to represent their plaint and defence to the praetor in any words they pleased, the plaintiff asking for a formula and usually indicating the style on the album that he thought would suit his purpose, and the defendant demanding when necessary an exception, i.e., a plea in defence, either praetorian or statutory, that, without traversing the facts or law of the plain- tiffs case, avoided his demand on grounds of equity or public policy. It was for the prsetor to consider and determine whether the action or exception should or should not be granted, and, if granted, whether it should be according to the style exhibited on the album or according to a modification of it. The result he embodied in a written and signed appointment to a judge, whom he instructed what he had to try, and empowered to pronounce a finding either condemning or acquitting the defendant. This writing was the formula. Although it was not until the early empire that this system of procedure attained its full development, yet it had its commence- ment two centuries before the fall of the republic. Gaius ascribes its introduction and definitive establishment to the Lex Aebulia (probably of the second decade of the sixth century of the city) and two judiciary laws of the time of Augustus (supra, pp. 696, 704). The jEbutian law, of which unfortunately we know very little, is generally supposed to have empowered the prsetors (1) to devise a simpler form of procedure for causes already cognizable per legis actionem, (2) to devise forms of action to meet cases not cognizable under the older system, and (3) themselves to formulate the issue and reduce it to writing. It was by no means so radical a change as is sometimes supposed. There were formulae employed by the praetor both in the procedure per judicis postulationem and in that per condictionem. The difference between them and the formulae of the jEbutian system was that the former were in part mere echoes of the statutory words of style xittered by the plaintiff, and that they were not written but spoken in the hearing of witnesses. A large proportion of the personal actions of the formular system Its appli- were evolved out of the legis actio per condictionem. The sequence cation to of operations may have been something like this. Taking the personal simplest form of it, the action for certa pecunia under the Silian actions, law, the first step was to drop the formal condictio from which it derived its character of legis actio, thus avoiding a delay of thirty days ; the plaintiff stated his demand in informal words, and, if the defendant denied indebtedness, the prsetor straightway formulated a written appointment of and instruction to a judge, embodying in it the issue in terms substantially the same as those he would have employed under the earlier procedure: "Titius be judge. Should it appear that N. N. ought to pay (dare oportere) 50,000 sesterces to A. A., in that sum condemn N. N. to A. A. ; 3 should it not so appear, acquit him." This was no longer the legis actio per condictionem, because what had made it legis actio was gone, but the certi condictio of the formular system. The condictio triti- caria of the same system ran on the same lines : " Titius be judge. Should it appear that N. N. ought to give A. A. the slave Stichus, then, whatever be the value of the slave, in that condemn N. N. to A. A.," and so on. In both of these examples the formula included only two of the four clauses that might find place in it, 4 an " in- 2 See Keller (as on p. 681, note 1), 23-43 ; Bethraann-Hollweg (as in same note), vol. ii. 81-87 ; Bekker (as in same note), vol. i. chaps. 4-7, vol. ii. chaps. 15, 19, 20 ; Baron, Gesch. d. rom. Rechts, Berlin, 1884, vol. i. 202-215. 3 In the typical Roman styles of actions the plaintiff was usually called Aulus Agerius and the defendant Numerius Negidius. Gaius enumerates them as the deinonstratio, intentio, adjtidicatio, and con-